British Attorney-General Lord Goldsmith and Solicitor-General Harriet Harman warn British Prime Minister Tony Blair that a preemptive war against Iraq, without UN backing, would violate international law and could potentially result in Britain being hauled before the International Criminal Court. [Financial Times, 10/7/2002]

British Attorney General Lord Goldsmith issues a statement that the use of force against Iraq would be legal, citing three UN resolutions. But a month earlier, Goldsmith warned British Prime Minister Tony Blair that an invasion could be illegal without a second UN resolution, and that resolution never passed. [Associated Press, 2/28/2004; BBC, 2/29/2004; Sunday Herald (Glasgow), 2/29/2004; Independent, 2/29/2004] It is later revealed that his change in opinion was a result of pressure from top British officials after senior British military officers had warned Downing Street that they would not participate in the war unless they were certain that neither they nor their men could eventually be tried for war crimes. [Observer, 2/29/2004]

British Attorney General Lord Goldsmith warns Prime Minister Tony Blair in a memo that any measures taken in Iraq by the occupying powers not related to the issue of security would be unlawful without an additional security council resolution. “My view is that a further security council resolution is needed to authorize imposing reform and restructuring of Iraq and its government,” Lord Goldsmith writes. “The government has concluded that the removal of the current Iraqi regime from power is necessary to secure disarmament, but the longer the occupation of Iraq continues, and the more the tasks undertaken by an interim administration depart from the main objective, the more difficult it will be to justify the lawfulness of the occupation.” He says that attempts to implement “wide-ranging reforms of governmental and administrative structures,” change the status of public officials or judges except in exceptional cases, or “the imposition of major structural economic reforms would not be authorized by international law.” Goldsmith also expressed this opinion orally during a cabinet meeting. [Guardian, 5/22/2003] The basis for Goldsmith’s position is likely the Hague regulations of 1907 (see October 18, 1907), which requires that an occupying power respect the laws of the country it occupies. [New York Times, 1/10/2004; FPIF Policy Report, 7/2004]

Britain’s information commissioner, Richard Thomas, rules that the minutes of Cabinet meetings at which ministers discussed the legality of invading Iraq should be published. In his finding, Thomas says that documents and transcripts concerning the legal discussions should be made public in part because “there is a widespread view that the justification for the decision on military action in Iraq is either not fully understood or that the public were not given the full or genuine reasons for that decision.” In this case, Thomas says, the public interest in disclosure outweighs the principles that normally allow the government not to have to publish minutes of cabinet decisions. The government is expected to appeal Thomas’s decision. In and of itself, Thomas’s decision does not have enough legal weight to force publication. Many lawyers, legal experts, and antiwar figures believe that the decision to invade Iraq in 2003 was illegal under international law. On March 17, 2003, then-Attorney General Lord Goldsmith ruled that the invasion was legal (see March 17, 2003), but Goldsmith had issued dramatically different opinions before the eve of the war (see Before October 7, 2002). One of Goldsmith’s legal opinions against the war, published on March 7, 2003, was kept from the Cabinet ministers, and many argue that had the Cabinet known of Goldsmith’s reservations, some of the ministers may not have supported then-Prime Minister Tony Blair’s decision to invade Iraq. Former international development secretary Clare Short, who quit the government following the war, says the Cabinet minutes would only give a “sanitized” account of the meetings, but their release would set an important precedent: “[H]aving made this decision, the discussion won’t stop there. There will be pressure for more,” she says. The Cabinet Office has not yet decided whether to obey Thomas’s ruling. [Guardian, 2/26/2008] That office previously rejected a Freedom of Information request for the transcripts. [BBC, 2/26/2008]

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